Awkward but not Brave - Brené Brown stays on Spotify

Brené Brown, a research professor at the University of Houston, decided on Feb 8 to keep her podcasts on Spotify after pausing her podcasts on Feb 1 in the face of the platform’s choice to continue streaming Joe Rogan’s inflammatory podcast. Although she made a career from “Daring Greatly,” her choice was awkward and not brave. 

 

In a post explaining her decision, she argues that because she has an exclusive contract with Spotify, she has fewer options than artists who can make their music available on other platforms. She compares Spotify to a cafeteria where people can come in and sit where they like justifying her association with a platform that hosts Joe Rogan because her fans needn’t “sit with them.” Neither point is convincing.

 

I’d like to address the free speech cafeteria analogy first because I think it misses some important facts.

 

Although Brown would like us to think of Spotify as a cafeteria, Spotify is more like a concert (or a festival) with headline acts. The most important difference is the money involved. Brown and Joe Rogan are like headliners at the show; they’re each convincing their fans to come and, when those fans come to Spotify, they either pay a subscription, or have to listen to advertisers, or both. That money is then used to pay Brown and Rogan for their exclusive contracts. And much like a concert or festival, some acts almost certainly get paid more (Rogan) than others (Brown). Still, everyone coming to the show ends up paying some to each.

 

The exclusive contract actually compounds the problem. Because you can’t hear Brown’s podcast except on Spotify, her fans must give their subscription and/or attention to Spotify to hear the show. Thus, Rogan also gets part of his compensation from every one of Brown’s fans she brings to the streaming service. But all contracts can be terminated, even though that is likely to cost Brown money and opportunities.

 

Brown says that “words matter” and that some of the content on Rogan’s podcast made her “physically sick”. The distance between Brown and Rogan comes across as being about more than just misinformation, a part of the Joe Rogan podcast that Brown thinks Spotify is beginning to address. Brown also seems concerned about core values and how they’re expressed in public. In fact, in her cafeteria analogy she says “sharing the table with Rogan puts [her] in a tremendous values conflict with very few options”.

 

One of those options is to stop sharing the table and to find a new (or return to an old) way of publishing her podcast. If her values are that much in conflict with Rogan’s, then she can make the decision not to force her fans to subsidize the Rogan show. It should, in fact, be “me or Joe”.

 

It’s great that Brown states that “I’m always going to stand firmly on the side of free speech”. But that’s not what’s at issue here. Brown leaving Spotify, or asking Spotify to remove Rogan, doesn’t mean Rogan doesn’t have free speech rights. If he left Spotify, Rogan would find another platform and his fans would follow. I think this issue is not about censorship or free speech; it’s about making your fans buy tickets to a festival where someone else is spreading misinformation and saying hurtful and racist things. India Arie really said it best when she decided to pull her music from Spotify: ”This shows the type of company they are and the company that they keep.“

 

Brené Brown should be brave and choose not to keep company with Joe Rogan. Words matter, and actions matter. By staying on Spotify, Brown is signaling that the cost of leaving the platform is more than she’s willing to pay to keep her fans from subsidizing Spotify or Rogan.

Distinguishing Snyder from Rosenbloom

University of Houston Law Center's Professor Leslie Griffin of the Religion Rogue blog analyzes the recent Supreme Court decision in Snyder v. Phelps in the context of an earlier case, Rosenbloom v. Metromedia. Professor Griffin suggests the Court may be moving toward a Free Speech analysis suggested by Justice Brennan in Rosenbloom, which protects speech about matters of "public concern" even when it causes harm to private individuals. I believe that Chief Justice Roberts's opinion in Snyder is written in such a way that its analysis is distinguishable from Justice Brennan's.

The speech in Rosenbloom which Justice Brennan suggested was protected was about Rosenbloom himself; he was described as "a main distributor of obscene material in Philadelphia." I believe that stands in contrast to the facts considered important by the majority in Snyder. As Justice Alito points out in Part IV of his dissent, the majority first confines their analysis to the placards at the funeral, putting aside the events before and after (which included a press release and an internet "epic"). Even in that limited context, the Court had to further decide that the "predominant theme" of the speech was of public concern, since some of the signs could also reasonably be interpreted as referring to the plaintiff or his family. The result was a conclusion that the speech in Snyder wasn't really about the plaintiff at all, which I believe is how the Chief Justice could conclude that it was in the category of speech afforded the most protection by the Supreme Court. I believe this is an important distinction between Rosenbloom and Snyder; if that's true, then we may not yet know if this court might adopt Justice Brennan's reasoning in a case applied to speech either about or targeted at a private individual.

Sticks and stones

may break your bones, but names can never hurt you; the Supreme Court decision in Snyder v. Phelps reminds me of the schoolyard taunt. The opinion seems to take great care to point out that all that was analyzed was the picketing activity of Westboro Baptist Church at the funeral of Matthew Snyder; the broader context of the conflict between Snyder and Phelps, which included television and internet publications, was explicitly not discussed by the majority or the concurrence. This case involves the interaction between two different parts of the law.

The first is an area of torts law; the lower court found that the Church had intentionally inflicted emotional distress (IIED) on Albert Snyder, the father of the Marine whose funeral the Church picketed, and one of the persons targeted directly by the Church's related writings. IIED requires a jury to decide that intentional, extreme, and outrageous conduct by the defendant caused severe emotional harm to the victim. In this case, the jury in the lower court did find the behavior of the Church outrageous, and awarded Snyder damages. The right of Snyder to sue for these damages is established by the State.

The second is First Amendment jurisprudence - in this case, the right to speak freely. The Court has allowed the State to constrain that right in certain cases, on a continuum from most protected to least protected. When the government attempts to interfere with the most protected speech, the Court applies the highest level of scrutiny, and the government usually loses. In this case, the Court looked exclusively at the behavior of the Church at the funeral and decided that the picketers were in a public place, making statements of broad public concern, not ones exclusively targeted at the Snyder family. Because this falls into the category of "most protected speech" the government must show that any restriction on it is very narrowly tailored to serve a compelling interest.

There are a number of things to look at in a decision like this. First, the dissent argued that the speech involved in the conflict between the Church and Snyder could reasonably be characterized as targeted when analyzed as a whole (including the television and internet postings). The majority decided that the predominant theme of the messages on the placards at the funeral were speaking to issues of broad public concern - America's tolerance of homosexuals. It's clear that what you include in the analysis will affect the outcome in a decision like this. Targeted speech of a certain kind was considered less protected in a case called Chaplinsky v. New Hampshire; that lower level of protection may have made a difference in this case.

Next, the compelling interest in this case would be the State's desire to protect its citizens from emotional attack. The Court has spoken in this area earlier in a 1988 case called Hustler Magazine v. Falwell. There the Court looked at speech that was targeted at a public figure. Despite the targeted nature of the piece, the Court decided that the State's interest in protecting the emotional well-being of a public figure could not overcome the speaker's right to create the parody in question. Had the Court in Snyder v. Phelps decided that the speech was targeted at Snyder and that Snyder was not a public figure, they might have given some guidance about the balance between the State and the speaker in this different configuration. Instead when they decided that the Church's message was of broad public concern, they put the speech into a category which the State is rarely allowed to regulate, because the Court believes the government may not interfere with the free discussion of ideas important to a politically informed citizenry.

Finally the Court addressed the issue of whether the definition of IIED was narrowly tailored enough to survive the strict scrutiny it imposed. In a statement which echoed a similar analysis in last year's United States v. Stevens, the Court reiterated that it was inappropriate to allow the over 50 jurisdictions in the United States to apply what are essentially local criteria in restricting speech. In the Federal statute at issue in the Stevens case, punishment could be imposed when the material was "illegal in the State in which the depiction is created, sold, or possessed", giving up to three different jurisdictions a chance to criminalize the video; in this case, each local jury could apply its own definition of "outrageous conduct" as described above. The majority decided that such a definition did not give enough guidance about what speech should be punished, and thus could reach even the speech in this case, which they decided was highly protected.

Although the opinion said multiple times that the decision was very limited to the facts in this case, we may be seeing a clue that IIED cases will be analyzed very strictly in future speech cases. On the other hand it may be that this analysis only implicates speech of public concern in a public forum, and that the outrageousness requirement may survive a lower level of scrutiny in different circumstances. If such a case comes up, we may see if the Court decides that some words, like sticks and stones, can hurt you, and be punished.

Freedom of speech

Justice Holmes, joined by Justice Brandeis, in his dissent in Abrams v. United States:

... But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

Justice Brandeis, joined by Justice Holmes, in his concurrence to Whitney v. California:

Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of law-breaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.
Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.

On Sarah Palin and inspiration

This response to a friend's blog re-post got too long for the comment box. There are a few questions to explore:

1. Was Sarah Palin responsible in any way for the Giffords shooting?
2. What about her free speech rights?
3. How does this compare to Mark David Chapman reading Catcher in the Rye?

Was Sarah Palin responsible in any way for the Giffords shooting?

18 U.S.C § 2(a), which is an example of a statute criminalizing aiding and abetting a crime, reads as follows: "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." The key words a jury would consider in this case are probably counsels and induces. A prosecutor would work to convince a jury that Palin's writings and rhetoric convincingly counseled violence or induced it in the attacker. It's not a requirement that Palin be a necessary element; it's not necessary to prove that this attack would not have happened without Palin's contribution. A jury would just have to decide that Palin suggested or supported such an action.

Frankly, it's pretty unlikely any jury would reach that conclusion.

What about Sarah Palin's free speech rights?

The Supreme Court decided in Brandenburg v. Ohio that some violent speech is protected by the First Amendment to the US Constitution. The Court decided that States could only criminalize speech "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." This is a high bar for a prosecutor to reach in this case. Palin's web site was not apparently inciting imminent lawless action, and I don't think a jury would find that it was likely to do so either. While the web site listed individual lawmakers by name, and included gun sights targeting their districts, there was no direct call for violence, and most reasonable visitors would likely understand by the context that this was a political "call to arms" since this was published by the Palin PAC.

However the case isn't quite that open and shut. In 2003 the Supreme Court issued a relevant decision in Virginia v. Black, a case involving a statute criminalizing cross burning. While the defendants there claimed the statute infringed their right to free speech, the Court upheld the State's right to criminalize this form of expression because it was a "true threat"; the history of cross burning made this activity less an expression and more an intimidation. Here there is no statute prohibiting a publication of individual names with violent imagery, so Palin is not violating any law. However, if there were such a law, a prosecutor defending a conviction might look for evidence that such web sites have led to violence (e.g., against abortion providers) and try to make a similar argument.

Can you compare the Giffords shooting to the death of John Lennon?

Not really; an ambitious prosecutor would point out some salient differences. In particular, Sarah Palin did mention individuals by name, and placed gun sights (a symbol associated with violence) on their specific districts; Salinger's character did not shoot anyone, and especially did not mention John Lennon or anyone remotely like him. Because of these important differences, you can't say that just because it's unreasonable to associate Salinger with Mark David Chapman, it's therefore unreasonable to say Sarah Palin influenced Jared Lee Loughner. I think it's more compelling to do the analysis of her case on its own.

Burning the Quran

A congregation led by a Pastor Jones is planning to burn copies of the Quran on September 11, 2010 - the same day as the feast of Eid ul-Fitr, which marks the end of the Muslim holy month of Ramadan. I find it surprising that the plans of a 50-person congregation from somewhere in Florida are being reported around the world. Why would the actions of such a small group cause so much commotion?

1. This is not news.

   It should come as no surprise to anyone that there exists somewhere in the world a small group of people who are prejudiced against one or more other groups. If the media were to report on every such collection of people, they'd run out of room in every broadcast and in every newspaper. Had the news media not made a "story" out of these plans, no one would likely have even noticed it happened; as an event, it's especially uninteresting because there's no threat to anyone's safety or welfare. Sadly, by shining a spotlight on this insignificant group, and by making its leader famous enough to appear on television, the news, and in print, the media inspires them and others to even more outrageous acts in the future.
   

   This is a great example of where the phrase "nothing to see here, move along" is applicable.
   

2. They have the right to burn copies of the Quran.

   Speech of all sorts is protected in the United States under the First Amendment to the Constitution. There are some types of speech which can be controlled or punished, but for the most part, the tension between (1) protecting others and their reputations, and (2) encouraging discourse about the government, officials, and important issues generally ends up protecting most types of speech. In particular, as long as you're not causing a danger to anyone (arson) you're generally allowed to burn anything you want. That goes for flags, books, pop albums, etc.
   

3. Anyone who responds to this is responsible for their own actions.

   A number of U.S. officials have attempted to warn the group that their planned event will end up endangering the lives of U.S. citizens and troops around the world. I don't think this is a reasonable or relevant observation.
   

   To begin with, any response by a member of the Muslim faithful to the burning of a copy of the Quran is their own responsibility, not the fault of the members of this congregation. No one has the right to respond with violence to what amounts, at most, an insult. It's useful to keep this in perspective: the books this Florida church plans to destroy are mere copies of the text; burning these books will not make it impossible for others to continue to teach or worship as they did before. This is not an impediment to anyone else's free exercise of their religion. And no one's health or welfare will be directly harmed by the book burning.
   

   That said, people will respond in various fashions, and some will be incited to violence. Some of the violence may happen where U.S. troops are currently stationed. Frankly, the best way to prevent violence against the troops is to move them to somewhere safe, especially home. By referring to the potential danger to U.S. troops, General Petraeus and President Obama seem to be trying to use guilt to stop the book burning; the implicit suggestion is that any subsequent violence around the world will amount to "blood on [this congregation's] hands." These statements come across as nothing more than an indirect way to pressure this group to cancel their plans.
   

   Sadly, there are also likely to be responses from those who support the views of Pastor Jones and his church. If the event goes forward, it might instigate copy cat burnings in other communities, or may inspire other groups to grab media attention with even more outrageous activities. If the burning is called off, sympathizers may act out against those whom they believe worked to shut down the event. Again, anyone who responds violently on either side should be held responsible for their actions, in accord with the law.
   

4. What this group is doing is insensitive and an inappropriate response to 9/11.

   Of course, the purpose of the protection of speech in America is to encourage reasoned discussion and debate in our community. To that end, it's welcome to have public officials, ecumenical leaders, and generally everyone else point out that burning copies of the holy book of any group is simply a manifestation of hatred toward the members of that group. Such an event adds nothing to our understanding of the causes and/or effects of the events of 9/11; instead, it acts to rend the ties in their community (and in any others which respond).
   

   I understand and defend their right to express their ideas in this fashion, but I can't say I appreciate or support it. While the government and elected officials have no right to tell them not to go ahead with their plans, I wish they would choose on their own to cancel their event, and I really wish I'd never heard of them at all in the first place.